For the entire duration of the current EU copyright reform we have advocated that the press publishers right be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.
But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.
The waivable press publishers right
Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU. Continue reading
This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.
In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.
The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.
Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.
We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading
Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.
Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.
This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:
EP position: general blocking of all unlicensed content
The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else. Continue reading
Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Julia Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.
Limiting the damage by clearly identifying the services targeted
Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.
Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.
The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis. Continue reading